De Bevoise v. Ingalls — 34 N.Y.S. 413

Majority

p. 413

(88 Hun, 186.)

DE BEVOISE v. INGALLS et al.

(Supreme Court, General Term, Second Department.

June 14, 1895.)

Headnote

Appeal—New Trial in County Court.

Under Code Civ. Proc. § 3064, authorizing the county court to grant a new trial on appeal from a judgment by default rendered by a justice, where appellant renders a satisfactory excuse for his default, a new trial cannot be granted unless an excuse is given by appellant for not appearing before the justice. Pratt, J., dissenting.

Appeal from Rockland county court.

Action by William De Bevoise against William Ingalls and others. From a judgment directing a new trial in the justice court, defendants appeal.

Reversed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

George A. Wyre, for appellants.

A. S. Tompkins, for respondent.

The appeal from the justice’s judgment was heard by the county court upon the justice’s return. The court had power to reverse the judgment, but no power to direct a new trial. Section 3064 of the Code of Civil Procedure was not applicable to the

Dissent

p. 414

facts of the case. That section empowers the county court to direct a new trial only when the appellant “renders a satisfactory excuse for his default.” No affidavits were read on the argument of the appeal, and no excuse was shown why the appellants did not appear before the justice of the peace. The county court is a tribunal of limited jurisdiction, and can exercise, on appeal, only such powers as are conferred upon it by statute. It was error, therefore, for the court to order a new trial, and the part of the judgment appealed from must be reversed, with costs.

DYICMAN, J., concurs.

This case is regulated by Code, § 3064, which is as follows, viz.:

“If the appeal is taken by a defendant who failed to appear before the justice either upon the return of the summons or at the time to which the trial of the action was adjourned and he shows by affidavit or otherwise that manifest injustice has been done and renders a satisfactory excuse for his default, the appellate court may in its discretion set aside the judgment appealed from and by order direct a new trial before the same justice or before another justice of the same county * * * upon such terms as it deems proper.”

Section 3066 is as follows:

“* * * If a new trial is before the same or another justice * * * the costs of the appeal are in the discretion of the appellate court.”

It is to be noticed that the defendant rendered no satisfactory excuse for his default, and that the judgment was not reversed, but set aside.- It was clearly in the discretion of the county judge to make the order appealed from, and it is affirmed, with costs and disbursements.